 Welcome everybody to the first of March. Spring is around the corner. Please turn off your cell phones. And the second thing I want to say is several people have asked if we're going to have a trip this next semester. We would like very much to have your ideas on a kind of a trip you would like to take. We don't know what our schedule is for next semester, but if you've got some ideas, we would very much appreciate it. You can leave them at the membership desk or you can contact me and my info is on the brochure and on the website. And so now Sandy will introduce our speaker. We have the pleasure today of having with us T.J. Donovan or Thomas, I guess John Donovan is that right? But everybody, James sorry, but everybody knows him as T.J. T.J. is now the Attorney General of the State of Vermont and has been so for two elections. Is that right? He's been elected for two terms. He is the Chief Law Enforcement Officer of the State of Vermont. Whatever that means and I'm sure that he'll tell us what it means. He is a graduate of Merrimack College and also Suffolk Law School. He served in the Chittenden County State's Attorney's Office where he was a prosecutor. He is a person that really I believe serves the people of Vermont because he does a lot of personal constituent work. And I've seen really very few politicians who take that as seriously as does T.J. So he's with us today to talk about various subjects, the rule of law, prison reform, but he's also here to answer questions because I'm sure you all have a lot of questions about the role of the Attorney General and the rule of law at this particular moment in our history. So thank you. Here's T.J. Thank you, Sandy. It's good to know that after all these years of friendship you still don't know my name. But thank you for that introduction. I want to acknowledge my high school history teacher who I just saw here, that's Chippy Kane. I think the first and one of the few A's I ever got was a report on the Civil War in Chippy's American History class. And I think Chippy probably knew this but I also think it was the time of Ken Burns' wonderful documentary on the Civil War and I happened to do a report on the Civil War and it just kind of all worked out. But I will say this, you know, and I don't know another teacher who I see often who I'm sure many of you know. I grew up in Burlington and I went to Burlington Public Schools and Chippy certainly was one of the best teachers. And I also see another teacher, I don't think she's here but I'm sure she might come to this, a Ducky Donath. Great lady, my fourth grade teacher, and I see her quite often. So I'm happy to be here and I'm happy to talk about the Attorney General's Office about the criminal justice system, about the rule of law, about some current cases, but really just happy to take questions from folks as well. So about 45 minutes? Okay. So the Attorney General's Office is the Chief Law Enforcement Officer for the state and Sandy raises a really good question. What does that mean? And it means a lot of different things and it gets really confusing when you start saying who does the Attorney General actually represent? Does it represent the people of the state of Vermont? Well certainly it does in civil rights actions or environmental protection actions. Or does it represent the state of Vermont as a legal entity? And yes we do, we represent all state agencies and any time the state of Vermont gets sued we defend the state of Vermont. And I gotta tell you, we get sued a lot, the state of Vermont gets sued a lot. Last year we just made this presentation to the house appropriations because I had to go in for our budget. And I was incredibly surprised by this. There was over 500 lawsuits last year. Yeah, 500. So any time there's a lawsuit against the state we defend it. And let me just say a little bit about the Attorney General's Office. There's about 90 lawyers, so it's the biggest law firm in the state. The lawyers are littered throughout state government. So you definitely have your core groups of lawyers whether it's your criminal division, whether it's your environmental division, whether it's your public protection division which is consumer protection and civil rights. Whether it is the civil division which defends state government. Then we represent the Agency of Human Services which is the largest part of state government. And we have a bunch of lawyers over there whether it's representing the Department of Corrections, whether Department of Independent, Dale, Department of Agent and Independent Living. And we also have a division called General Counsel which we are the legal officers for state agencies like the tax department. So really any issue that's going on in state government we're involved in in terms of the legal work and it's a lot. As I said it's the largest law firm in the state. Our budget's about 12 million bucks which isn't that big. It's mostly personnel, salaries and benefits for lawyers and staff. And any major issue going on in the state we're involved in whether it's the EB-5 case up in Newport, whether it's the Kaia Morris case in Bennington that I'm happy to talk about, whether it's the closure of the Vermont Yankee nuclear power plant we're involved in. So the portfolio is really, really expansive. In terms of criminal jurisdiction we have what's called concurrent jurisdiction with the 14 elected state's attorneys. Which means that although rare we can go into any county and bring a case essentially if we want. That's somewhat rare and I'll talk about that a little bit. And part of that causes I think and I'll touch on this a little bit based on Sandy's introduction about what's going on in the criminal justice system. We spend a lot of money on the criminal justice system in Vermont. We spend more money on our department of corrections which are jails essentially than we do in higher education. I don't think that's a priority anybody supports. I don't have the exact number in terms of what the DOC budget is but it's over $150 million. And the cost is actually quite outrageous when you look at it and you start looking at outcomes. To incarcerate a woman in the state of Vermont it's about $79,000 a year. To incarcerate a man it's about $60,000 a year. And the difference on that is really mental health treatment for women. And I would say this about the reason why the need is so great for women. Because most women who are in jail are victims of some sort of trauma that was never treated that was never diagnosed. And they end up in jail and you want to talk about domestic violence. You want to talk about sexual violence. You want to talk about emotional abuse. It's all there. It's in jail. That's not an excuse personal responsibility. It's perhaps to acknowledge some of the circumstances where people are at the time a crime is committed. To really understand what's going on in somebody's life. My view now we're having a debate in this state about incarcerating people out of state. We contract the state of Vermont contracts with a for-profit prison company, Corsivic I believe, down in Mississippi for about 250 Vermont inmates. I don't agree with that because first of all the job or the duty I should say to incarcerate somebody is the role of government. The role of government. And when you really think about and this gets into the rule of law issue a little bit, anytime there's a criminal charge one thing is going to be the same in 14 counties. You're going to have what's called an information and that's really the charging document that's produced. And on that there's going to be a couple things. It's going to outline the facts of the allegation of the crime. It's going to give you the minimum, I should say the maximum jail sentence and the maximum financial penalty. But every information is going to have the same language on the bottom. It doesn't matter if it's in Bennington County or Caledonia County against the peace and dignity of the state of Vermont. And what that means is that the crime is committed against the state. Yes there are victims of crime, yes. But the crime against the peace and dignity against the state of Vermont. And when you think about that because of course it is the government, the state who is the prosecutor, the state of Vermont, who is an extraordinary thing to say to a citizen that you violated our rules and we as a punishment are going to physically remove you from our community. And that's how I think about jail. We physically remove people from our community and put them in a box. That's an extraordinary thing to do. And I think one of the issues about what we need to do a better job in terms of the criminal justice system and prosecutors are a big part of this is we're very cavalier about time. We're very cavalier about time and we throw out years and months like they mean nothing. And having been a prosecutor for most of my life, I'm guilty of it. I think I evolved over the course of time because I can tell you this about the criminal justice system that for me as when I was Chittenden County State's attorney it was that definition of insanity. Doing the same thing over and over again but expecting a different result. And at some point in time, once you saw the same people day in and day out, you'd have to say, wait a minute, this isn't working. And then you add in the fact of who do you actually see in the criminal justice system. And as I said, I was lucky. I grew up in Burlington. I grew up in a middle class family in the south end. And I went to public school and I had a good upbringing. That was probably one of the best things that prepared me to be a local prosecutor because I saw a lot of the kids who I grew up with and went to Burlington High School with. And perhaps didn't know them but knew their family. And it does matter where you grow up. It does matter what schools you go to. It does matter what family you come from. And we talk about this issue of inequality all the time in politics right now, rightfully so. It is amplified in the criminal justice system because who you see in the criminal justice system are the poor. Increasingly people of color in this state but mostly the poor who suffer from addiction, who suffer from mental illness, who have maybe a high school degree who are unemployed or underemployed. And you have to ask yourself the question, do the poor have a monopoly on committing crime? Well, of course they don't. But why are they overrepresented in our court system in our jails? And it raises real issues about how we define what a safe and vibrant community is for everybody. And my evolution as a prosecutor really was to expand that definition not just about a courthouse, not just about a jail, but about access to health care, mental health care, making sure that we had folks who could get into treatment who were struggling with addiction, but even going back earlier to that, true investments in our community, early childhood education, good public schools, affordable housing so people can be rooted and can stay in their community, access to affordable higher education, all the foundational things about what we talk about a safe and vibrant community, that's what we actually need prosecutors to be talking about, to actually redefine what a vibrant community looks like. It's not about jails, it's not about courthouses, it's about the foundational aspects of what we define community as. It's about this. And I'll just give a quick contrast in my own personal experience. I'm drinking coffee this afternoon, I never drink coffee afternoon, but we went away the last two nights to go skiing because it's school break. I got two kids. I think I ended up on the floor the last two nights. Small room, small hotel room. When I got out of school, my first job was in Philadelphia. I was an assistant DA in Philadelphia. I don't know if anybody's really familiar here with Philly. I didn't know anything about Philadelphia. I wanted to be a prosecutor and they offered me a job, I think January of my third year of law school. I was like, wow, give me a job and I want to do this. I'll take it. And Philadelphia, at least at the time, and I think it still is, was a majority minority city, meaning it was majority African American. Most of the lawyers were white. And as a baby prosecutor, you used to have to go to what's called precincts to do preliminary hearings. And I used to have to go to this place called 17th of Montgomery up in North Philadelphia. And North Philadelphia at that time, and I think probably still, it's pretty rough. Yeah, right by Temple University, absolutely. And as I said, I grew up in the South and I grew up on Bayview Street, which is a nice street. And in the south end of Burlington, the bottom of my street was a church. Five blocks south was, I still call it South Park, now Callahan Park. Christ the King was down there. You'd go five blocks the other way. I went to Edmunds Elementary. You could go to Smalley Park. You could walk down to Lodge Brothers Market where I worked as a kid. I mean, it was a true community. I saw none of that at 17th of Montgomery. I saw, I think for the first time, real poverty, blight. And what I saw was boarded up buildings, trash, graffiti. I didn't see any schools. I didn't see any parks. I didn't see any churches. And public safety to me in large part is defined as do you perception? Do you feel safe? I didn't feel safe. And every day I'd go to court and I would prosecute young African-American men for possession of crack cocaine. And it was what was called a poid charge, PWID, possession with intent to deliver. And the significance of that charge was it carried a mandatory minimum sentence. Meaning it was just based on weight. How much did you have? And if you had a certain threshold, you got state time and state time was tough. And if you were below that threshold, you got county time and county time was a little bit easier to do. 24, 25 years old, I don't have a clue. And every single day I'd go to this, and it was at a police station, and I would prosecute young African-American men for that charge. And every single day I'd walk through this neighborhood not feeling physically safe. Not seeing any of those assets, those community assets, that I defined a neighborhood as from my own experience. Churches, schools, parks, trees, sidewalks, businesses, health care, you name it. I didn't see any of it. Every single day I'd do this. And finally one day I'm sitting there in court looking around. Finally I said to myself, if I grew up here, I might be doing the same thing these guys are. We're all products of our environment. We are all products of our environment. And I think when we look at that and acknowledge that fact, and then you look who ends up in the criminal justice system, it absolutely does matter about where people are raised, the homes they're raised in. I'm a big believer, and I'm not an expert on this, but I'm a big believer in understanding trauma, and understanding adverse childhood experiences. And adverse childhood, and this is what prosecutors and judges really got to understand. My wife is a mental health counselor, and she talks about this stuff a lot. And I'm lucky because I learn, because I wouldn't have a clue. And essentially adverse childhood experiences basically are these. That if you grow up and it's zero to five, the early years, whatever happens in that house, whatever happens to that child during those first three to five years, it charts your entire life path. Higher rates of addiction, higher rates of mental illness, less life expectancy. And so I went to this talk like this, and on ACEs, Adverse Childhood Experiences, and you say, you know, people who grow up in stressful homes, you know, the stress is so toxic that it has these lifelong impacts. And I raised my hand and said, no, wait a minute. I grew up in a big Irish Catholic family. We know dysfunction. We know dysfunction. And last time I checked, I'm a big believer in perseverance and resiliency and overcoming. And the presenter just looked at me and said, you don't get it. We're not talking about your dysfunction. We're talking about watching your mother get beat. We're talking about watching your mother be passed out because of addiction. We're talking about such extreme poverty that you don't know whether or not you're going to eat and that you don't feel safe. And that stress is so toxic that it changes your physical makeup and mental makeup. And so when we talk about public safety and talk about those issues of inequality, I really do believe that access to health care is probably the biggest thing in terms of making sure that we change what it means for people to truly have an opportunity to be successful in this community. Because, guys, this is all anecdotal for me. And there's probably people who could come up here and talk about stats and science and do a better job, but you know, I'd be in court. We'd be on the third generation of a family. We'd be on the third generation of a family. You ask yourself, why is it, why is it? And I'll tell you a quick story. So when I was 18 years old, I got drunk and I got into a fight. And I got arrested. And it was a searing experience for me because I was ashamed. I was embarrassed. To this day, I can still remember two things about that night. I can remember my father picking me up at the police station and the ride home. But I also can remember sitting at the top of our stairs listening to my mother cry, worried about me and what I had done. But the long story short, my future was protected. My father was a lawyer. We weren't rich, but we had resources. We had social capital. You know, I came from quote, unquote, you know, a good family. And my future was protected. I got what's called a deferred sentence, which means if you stay out of trouble, essentially, not only would the case be dismissed, but it would be expunged, meaning it would be erased. Any legal answers? No, never happened. And so fast forward 20 years and I'm state's attorney. And I'm a big believer in expungements, expunging old criminal histories because criminal convictions and criminal records, number one, I think are the most misleading documents in the criminal justice because it goes back to where'd you grow up? The police come down your street at night or not. All these variables. But criminal records also marginalize folks because you're answering that question and that label of your worst moment of your life. You are judged by that moment because the record says so. Incredibly unfair, incredibly arbitrary. And when you go and apply for that job 10 years down the road and you have to answer the question, have you ever been convicted of a crime? And you have to answer yes because you stole that 12 pack of beer 13 years ago that was $9.99 but you're labeled as a thief and that prospective employer is only going to see the fact that you're a thief. None of the facts, none of the circumstances. And I'm a believer in expunging that. And so these petitions used to come to me as state's attorney. And now as attorney general we go around the state and do expungement clinics because I actually believe in giving people an opportunity to get back to work, impacts housing, impacts education, certainly impacts employment. I'm a big believer of it. I'm at my desk one day and all of the stories, by the way, and the petitioner would always have to kind of write a little story about why they deserved or why they needed the expungement. And I gotta tell you, it was always about a job. It was always about a job. And one day I'm reading one and I recognize the name. It's a Burlington kid. Kid from my class. Kid who probably had a completely different experience than me. And he's probably 40 years old at this time, maybe a little bit older. And he was trying to get an assault conviction for getting into a fight 20 years ago. And it just stunned me. And again it brought home the disparity in the treatment of the haves and the haves not. And Chippy, if I said his name you'd recognize the last name. And I remember playing freshman football with this kid. I didn't know what was going on with him. And I don't think he even stuck with a team, you know, probably a red flag. But if we're judging at 14 years old, which way somebody's life is gonna go, that one kid who gets into a fight can get to be state's attorney and attorney general, and another kid who didn't have any money, whose father wasn't a lawyer, who quote-unquote came from one of those families who grew up in the poor area of town, even in this community, that's a flawed system. That's what we gotta change. And that's what we're working to change to address these issues. Because I think at the end of the day we all believe in fairness. We all believe in opportunity. I certainly believe in redemption. I've gotten, I always acknowledge this, I never got a second chance. I got a third, fourth, and fifth chance growing up. And I think that's what we have to extend. We have to believe in alternatives to incarceration. We have to believe in community programming. We have to believe that arresting people who suffer from mental illness and addiction isn't the way to do it. And it's certainly not to have a prosecutor who has no life experience sitting at the bar of court, making, it has no clinical experience, making a diagnosis of mental illness or addiction. That's what happens at the criminal justice system. And the prescription is usually a jail term or a probation term. It's a failed system. It's gotta change. So, as Attorney General, one of the first things that I did when I started was to start a community justice division that did not exist before. And the role of the community justice division was to kind of standardize across the state all these alternatives. So we didn't have these issues of geographic injustice in this state. Because depending on where you grew up in this state, that determined what alternatives existed. If you were from Rutland, maybe you didn't get an alternative that you had if you grew up in Burlington. And so we now have in every county three different alternatives. Standard diversion, kind of low-level diversion, first-time offender. We have what we call the TAMRAC program, which is based on a, I'm gonna screw this up, a tree in Vermont that is really nice and rejuvenates itself every year like most trees. It's a great program. More for folks who suffer from mental illness and addiction to be treated in the community, not in the criminal justice system. And then we have what's called a pretrial services program, which gets people set up with services during the penancee of their case so they're not waiting nine, 10, 12 months to get drug treatment, to get mental health treatment. And I'm happy to report that in every county, all the numbers are up. And we have a long way to go, but I think we've made significant strides in leveling out the playing field and really trying to change the culture of law enforcement to change the culture of the criminal justice system that is one that is truly based on risk. Look, some people deserve to go to jail because they do terrible things. That's a small percent of the folks in our system. The vast majority of those folks that are going to struggle with addiction or are going to struggle with mental illness and all those societal ills that we talk about, the safety net shouldn't be the criminal justice system. That's been a big part of my work. How much time do I have, Sandy? Fifteen minutes. Okay. Let me talk about the Kaia Morris case. Kaia Morris was a state representative who represented Bennington, Vermont and had received online racial harassment on public domain platforms like Twitter and whatnot. The Bennington police and there were allegations that her house was burglarized in October of 2016 and that a GPS was stolen and that she had been harassed by one individual, one named individual. In December of 2016, she applied for a civil restraining order in Superior Court in Bennington County and it was granted. I'm getting my dates wrong here. I apologize. The burglary was in October of 2016. The allegation of burglary and GPS were in October of 2016. In December of 2017, she applied for that restraining order and it was granted. In July of 2018, she received another online harassment. In August of 2018, she reported that her husband received an online death threat on their computer. There were allegations that Bennington police were not responding, that the prosecutor was not responding and we took the case, as I said earlier, we had concurrent jurisdiction. We could go in and take the case. We took it on that death threat case on the online death threat of August of 2018. We brought in the Vermont State Police that have a forensic computer forensic team to examine that online death threat. We determined through the Vermont State Police investigation that there was no online death threat. That in fact, her husband had recently purchased a used laptop computer and the laptop computer's previous owner was a 10-year-old boy who played video games. Sometimes you can make this stuff up. And the 10-year-old boy's screen name was Dead Dead and Dead Dead and the previous owner's cloud account still linked to the laptop and so when they opened it up or turned it on, it would come up dead dead. And I want to be really clear, perfectly reasonable given what was going on at the time for them to think that it was a threat. And we determined that it wasn't a threat, in fact it was the 10-year-old boy's previous screen name. We then said, well, why don't we look at these other allegations given what has gone on. In terms of the burglary of October 2016 and the GPS, the theft of the GPS in October 2016, and this is, we took the case in September of 2018, so now we're two years out. No evidence to corroborate any eyewitness to identify anybody. No physical evidence, no corroborated evidence whatsoever. So there was insufficient evidence to say this person committed a burglary or this person stole the GPS. And two years after the fact, absent that evidence, you can't go back and manufacture evidence. So then it was, well, what about these online threats? Does Vermont have a criminal statute that would address these, what are viewed as online racial harassment? And it was racial harassment, and I condemn it. It was demeaning, it was derogatory, it was terrible. The legal question was, are those statements, do they rise to the level of what's called a criminal threat in Vermont? The first thing you have to determine is, well, what's a criminal threat? And a criminal threat is essentially what's called a true threat, and that is a legal term that the Supreme Court has said, is an exception to the First Amendment's protected speech. So now we're into the First Amendment, and we're into protected speech. The first one is, is there an exception to protected speech? And yes, there are. The first one is, is it a true threat? Well, what's a true threat? A true threat has to be an explicit threat of physical harm. It has to be a serious intention of placing somebody in fear of death or serious bodily injury. And then you add in the fact that Ms. Morris was a public official, and the standard gets a little bit higher. And so then we said, well, let's look at the, we have to look at the statements. And the first statement essentially was an individual mocking how an African-American would speak. Clearly racist, but not a threat. Doesn't rise to the level of a criminal threat. The next statement was essentially mocking the hairstyle of an African-American woman. Clearly racist, demeaning, derogatory, but not a threat. The third message, the question was, the statement was, after that restraining order had expired. Remember that restraining order was issued in December of 17, for a year. In July of 18, so then we're 19 months out. Statement is something along the lines of this. You'll never silence me. I'm going to troll you. And if you're at a public forum, I'm going to show up and maybe I'm going to bring my friends. So then we applied that statement to that standard of, did that statement constitute a serious intention of placing somebody in death or serious bodily injury? I'm just going to grab my chair. And how you interpret that is to say, what has case law said is a serious intention of death or serious bodily injury, of placing that person in death or serious bodily injury? That standard's really high. And one case was President Obama, when he was candidate Obama, somebody posted to a public message board, a racist rant and something along the lines of, you know, put a 50 cal in your head. The court said that's protected speech. There was another case where Christine Gregoire was the governor of Washington. Somebody threatened or wished sexual violence upon her daughter. And that quote, she should burn at the stake like any heretic. The court said that's protected speech. So then you say, well, what is a true threat? And a true threat was something the court has found. One case where somebody said they were going to bomb a building and had detailed plans. I said, okay, that's maybe a threat or something that was as direct as intentional as, I'm going to kick your, you know what? And when we looked at that statement of, I'm going to troll you. That's probably, I think it is, not probably, political speech. I'm going to follow you online. And you're an elected official, and I get to criticize you as an elected official, or I get to support you because that's my constitutional right to engage in that political platform. Okay? And if you're at a public forum, I'm going to show up. Politician at a public forum. And somebody saying, I'm going to show up. That's going to be protected constitutional speech. And maybe I'll bring my friend or three friends. I don't think that statement, and I don't like it. I want to be very clear. Rises to the level of a serious intention of placing a person in fear of death or serious bodily injury. That it's not an explicit threat of harm. It's terrible, but it doesn't rise to the level of breaching the protected speech status of the First Amendment. And here's the challenge. Here's the challenge. We talk a lot about the rule of law right now in this country. Rightfully so. We have sued the federal government numerous times. Because we think they've breached the rule of law. And my message is very simple. That standard applies to me, too. That I have to prosecute people based on evidence, based on facts, and based on the precedent of the rule of law. Not because I dislike somebody. Not because I disagree with them. Not because I'm offended by them. Because that is an incredibly dangerous system to have. And it's a slippery slope to say that the person in power, the chief law enforcement officer, gets to choose who he prosecutes, not on facts, not on evidence, but based on political belief and based on likes or dislikes. That standard, the issue of racism is real. The issue, I don't believe. I also want to point one thing out, too. In 2016, when I was state attorney before I was elected, attorney general, I brought a case to court. And in that case, facts were very different. I still think they're good facts. Where a member of the KKK here in Burlington was handing out flyers. And if he was handing out flyers to every one of us that walked out of this room today, on Dorset Street, on a public street, handed his flyers, I would defend his right to do that. I don't like it, I disagree with it, I condemn it. But he has that right to do that. Now, in the Burlington case, he was handing out flyers. But the evidence was that only two people in the entire south end of Burlington received those flyers. They happened to be two women of color. And the flyer was a pitcher of a Klansman on a horse with some rhetoric. And it recalled, like, join the Klan and something else. I charged him. I said, that's a threat because it's directed to women of color. Not to all of us. I lost that case at the Vermont Supreme Court. That that wasn't a threat. And when you look at those facts, when you look at the facts of those other cases, and you look at the language on a public domain to an elected official, it doesn't rise to the level of a criminal threat, in my opinion. The standard is incredibly high. And you look at some of those decisions from the past, and you look at the authors of those decisions, whether it was Thurgood Marshall or Justice William Brennan, civil rights advocates themselves, who have always said that speech that's even offensive, that is vehement, that offends us, is protected because you want a robust political debate. You want the openness of the political discourse, even when it's offensive to us. It was not an easy decision. I didn't make the decision lightly. And I know it was an unpopular decision, but it was the right legal decision. And I don't believe in chipping away at our Constitution and the rights that protect every single one of us because of political expediency. That is the absolute wrong message to send, particularly in this political climate. This isn't the time to disregard our Constitution or our constitutional rights. It is actually the time to follow our rights and demonstrate that the rule of law is not always convenient. It's not always pretty. It doesn't always work. That our country is an imperfect country. But we are, in the words of Lincoln, striving for a more perfect union. And we're not going to get to a just and reasonable society simply by arresting people because we disagree with them. That work happens in the community. That work happens by condemning racism and working to provide opportunity for folks who have been marginalized. So these are tough decisions, but they're decisions that I feel strongly about. I wish it were different, but you go by the facts and you go by the evidence and you follow the law. And I just want to say this. That Constitution, as I said, it applies to all of us. Even people we disagree with and dislike. That's the strength of this country. And we don't violate people's constitutional rights even when they've done horrific things. That murder suspect, when he's arrested, I'm going to tell you what the police are going to do. They're going to do everything they can not to violate his Fourth Amendment rights. I'm going to tell you what the prosecutor's going to do. They're going to do everything to make sure that they don't prosecute his Fifth Amendment rights. I'm going to tell you what the judge is going to do. They're going to do everything they can to make sure they don't prosecute his Sixth Amendment rights. job this is the rule of law that's why I made that decision and I'm happy to take questions because I know it's 45 minutes I have to one is a statement and I was under the impression that the person who was this who who who sent the messages proudly admitted to doing these acts and so I wondered how that fit in but secondly what then is hate speech great question hate speech is exactly that hate speech what I just outlined I think hate hate speech by itself is not a crime when people talk about hate crimes hate crimes in Vermont is what's called a sentence enhancer so you have a crime call it disorderly conduct and if it was motivated by race or animus towards race or gender then you would have that hate crime enhancement on the penalty and so the crime that we looked at was a criminal threatening statute which gets you into is that a true threat to make it an exception to the protect to protected speech and the individual and I got to be a little careful because there's a pending case did admit to it but if it's protected speech is it warm in here I'm happy to take other questions so TJ thanks for talking about how you're working to reform the the court system I know you're not in charge of the prisons I'm sure you're glad about that but can you speak about are you doing anything you know there's a lot of reform efforts that the legislature's looking at right now is there any part that you play in this want to play in this and would you speak to that for just a minute so there is a lot of work going on in the legislature about our correctional system and the big debate is essentially how do we stop contracting with out of state prison or prisons as about 250 people as I said and that's that's so we have capacity of 1500 in the state we got about 1700 total let me start with a good news that we are essentially 30 percent less than what our project projected incarceration rate was going to be and I think it was either the Pew group or one of those organizations were 30% less that that's great because we've done a lot of these alternatives and that's that's that's wonderful the question is how do you get below 1500 because that means you don't have to contract with without a state prison companies there's no easy answer I think the big one is housing many people so the general rule is once you've hit your minimum sentence so you get it you get a sentence call it you know one to three years okay well that one is your minimum three is your maximum and on your minimum you're eligible for release and then you come out usually on what's called furlough than to parole and then you then you're out then you're done there is a debate about how many people are held past their minimums and here's the thing you're eligible for release at your minimum sentence and depending on the day there's about a hundred and fifty people who are held past their minimums for lack of housing and you say well what do you mean like housing they don't live somewhere so there's a condition by the Vermont Department of Corrections that says you must have like adequate or suitable housing I think the actual term is adequate housing I really struggle with that because it's a middle-class definition of what the adequate housing is and you get back to the point of it's mostly poor poor folks in jail well they never had adequate housing to begin with here's what I would do if I was in charge for a day yeah I would invest in transitional housing like Dismas House it's an amazing program and it works you gotta give and here's the thing it's in our collective best interest not only public safety but economically to have people be successful when they come out of jail and here's the thing about jail the vast majority people are getting out they're getting out and they're coming back let's make it successful we love to talk about Montpelier results based accountability I don't even know what that means it's a fancy term to make sure that we're spending our taxpayer dollars wisely in terms of our budgeting process down there well what does that mean for for corrections it means the recidivism rate right well the recidivism rates over 50 percent which means five out of ten people who are in jail go back in jail within three years now put that price tag back on it seventy nine grand for a woman sixty grand for a man it's outrageous let's invest in transitional housing and more I think a lot of people being held have mental health issues and they can't just let them live anywhere and there isn't any place for them to go absolutely the the issue of mental health I think is really a silent epidemic in the state it is everywhere and we have to one of the things that I've been doing with a gentleman by the name of John Broderick who's the former chief justice of New Hampshire Supreme Court we've been traveling around and he started in New Hampshire and I brought him to Vermont we've done about five schools he's getting an amazing personal story his son suffered suffers from mental illness and assaulted him almost killed him really a tragic story but a story that is out of that tragedy again comes forgiveness and love and redemption but to raise awareness about mental illness and to wash away the stigma about it and to go to because look here's a sad commentary on our state our suicide rate is higher than the national average and so we've been going around to Vermont high school is talking about it and saying you don't have to be embarrassed you don't have to be ashamed most people have it in their family I have it in my family and it's really hard well again take that middle-class family who has the health insurance or has the resources to get help you're never going to get to the criminal justice system take the poor and that first intervention is going to be the criminal justice system and then you go into that issue of trauma particularly with women on violence it is a perfect storm and we have a lot of work to do it's got to be community based if we're waiting to do it in the jail system we've waited too long and we got we got much more work to do so thanks for the question when when I was in school they said calling fire in a crowded theater was not true yeah so that that's the famous case yelling theater in a crowded and if you can't do it that's been overturned and in the facts the facts on that are really interesting and chippy's gonna help me out here cuz I'm gonna get my history wrong though those those that was during I think World War one or thereabouts and it was two individuals that were essentially there were communists and they were trying to have people join the Communist Party and it was against I think the Sedition Act and think about that for a second remark that I mean so the history you go into that the history these cases that's why I really have great reverence for the law and the Constitution because you think about this that might have been 1919 thereabouts right somebody who is speaking out against a war was prosecuted and the analogy of you can't yell fire in a crowded theater was essentially saying you can't when the country is at war essentially advocate against it and I think that was Oliver Wendell Holmes used that was his quote and I think all of us today a hundred years later would say of course that's freedom of speech and freedom of expression to advocate against our country's entry or engagement in a war that we disagree with but a hundred years ago we said it wasn't and so the Brandenburg decision if any of you are having trouble sleeping tonight I think it was Brandenburg v. Ohio actually overruled that case in that language that I used to cite the standard of that serious intention of placing a person in fear of death or serious bodily injury incredibly high was part of the print brandenburg decision which overruled that earlier KEL fire in a crowded theater I also want to say that's an objective standard it's not a subjective standard okay if it was a subjective standard be different so we're also engaged in the Vermont legislature trying to address this issue is there a way to craft legislation given the world we're in to address this type of hate speech that and you're absolutely right in describing that while making sure it does not violate our First Amendment it is hard but we're trying to figure it out but the last thing I don't think we want to do and I feel strongly about this is that yes we want to protect everybody but we don't want to chip away or erode our rights because of the political climate we're in that I think and I'm not opposed to taking a case up to the Supreme Court I did it with a KKK case I'll do it again but it's got to be the right case there's a saying in the law that I believe bad facts make bad law so you want to have the right case and you want to make sure and people have said well you know what about you know you got to test the you got to test the the court system to change and I agree with that so what about the you know Brown versus Board of Education I said absolutely I agree with that but those cases are so carefully selected and the record has made years if not decades in advance it is an orchestrated attempt of changing precedent I'm not opposed to that this wasn't the case based on the facts because the standard is so high yes thank you for the question thank you chippy for the history lesson as well I want to get back to this case in Bennington yeah you're a you're an attorney you're looking at it from the standpoint of the law which I certainly understand and I appreciate the fact that you're bringing up this case I've done a little bit of reading about it and it seemed to me that another way to look at this again maybe not from a lawyer standpoint but from the the person standpoint who is the object of all this bad language and I would look at it from the standpoint of how had her life changed that she have to change her kind of her schedule what what she does on a daily basis it also meant that she resigned from the legislature right there may have been an extenuating reasons for that as well was she afraid for her own safety I would factor those in and again correct me if I'm wrong from a legal standpoint but if it's a if it's a person of sound mind who has to make changes to their lives because of this that's got to be factored in as well yeah I appreciate the question and you take everything into account but it's the it's when you're doing the legal analysis you're applying the facts what are the allegations of the facts that the potential wrongdoer did right and did those violate that standard and the subjective part it's more it's more of an objective standard and what you hear throughout the law is a reasonable person standard and that objective person standard not really the subjective this is how it made somebody feel more the objective of that reasonable person now here's a great point and I I think this is probably where we're going on this not in this case but perhaps in the future does that reasonable person standard taking into account the historical legacy of racism does it take in the historical trauma which is real of the African-American experience I think those are real questions that we want to test the system on and those things that I'm interested in doing with the caveat of what I just said that it's got to be the right case and that is not to sound insincere I'm probably talking too much like a lawyer right now but you want the facts to do that and I and I think you need I hate doing this with a camera on too but because I don't want to sound insincere about this by just because this is how lawyers talk but you're looking through it for that explicit threat and you didn't have it in this case you didn't have an explicit threat and if you didn't have an explicit threat of harm you don't have a case you don't have a charge and so how do you address that precedent through the legislative process number one or when you get real close on a case to that explicitness that's the right word then to bring in the evidence of of that does the African-American experience hasn't been taken into account in terms of that definition of what that objective reasonable person standard is I think that's the question I think that's the next challenge and that's something that that I'm very focused on because I think it should be done and I think those are the cases that you put up in push you mentioned the Supreme Court and also second and third chances I wanted to go to the Kavanaugh situation did you think that that was fair for for her to bring up those charges and it seems to me that you know getting drunk or shoplifting when your kid is a little different from you know molesting molesting yeah I well I agree with you I think shoplifting is very different than sexual assault I thought it was fair and I don't think he should have been confirmed and I'll tell you why that the temperament he displayed and the allegation that it was political his words not mine disqualified him as a judge in my opinion period and so you name any party that's going to go in front of them that may be of that political persuasion or it may be a victim in a sexual assault case they're gonna have doubt that they're gonna get a fair hearing and I think that was the disqualifier for me well I didn't know that okay thank you very much and if you just hang around a few minutes you might get a few more questions